Goose Hollow Foothills League v. Romney, Civ. No. 71-528.

• Decision Date: 08 December 1971
• Docket Number: Civ. No. 71-528.
• Parties: GOOSE HOLLOW FOOTHILLS LEAGUE, an unincorporated association, et al., Plaintiffs, v. George ROMNEY, individually and as Secretary of the Department of Housing and Urban Development, et al., Defendants, Portland Student Services, Inc., Intervening Defendant.
• Court: U.S. District Court — District of Oregon

334 F. Supp. 877

GOOSE HOLLOW FOOTHILLS LEAGUE, an unincorporated association, et al., Plaintiffs, v. George ROMNEY, individually and as Secretary of the Department of Housing and Urban Development, et al., Defendants Portland Student Services, Inc., Intervening Defendant.

Civ. No. 71-528.

United States District Court, D. Oregon.

September 9, 1971.

On Motion for Injunctive Relief December 8, 1971.

Charles J. Merten, Marmaduke, Aschenbrenner, Merten & Saltveit, Portland, Or., for plaintiffs.

Sidney I. Lezak, U. S. Atty., Jack G. Collins, First Asst. U. S. Atty., Portland, Or., for defendants.

Gerson F. Goldsmith, Goldsmith, Siegel & Engel, Portland, Or., for intervening defendants.

OPINION

ALFRED T. GOODWIN, District Judge:

Portland Student Services, Inc. (PSS), received a loan from the Department of Housing and Urban Development (HUD) for approximately $3,193,000 to build a 221-unit, 16-story high-rise apartment building in the Goose Hollow area of Portland.

On March 29, 1971, HUD advanced PSS $1,190,940. Construction had begun when plaintiffs brought this action against HUD and its Regional Administrator, alleging that because these defendants had failed to file an environmental-impact statement as required by the National Environmental Policy Act of 1969 (NEPA) § 102(2) (C), 42 U.S. C. § 4332(2) (C), the disbursal of federal money was illegal.

The National Environmental Policy Act took effect January 1, 1970. It requires that all federal agencies "include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on—(i) the environmental impact of the proposed action * * *." 42 U.S.C. § 4332(2) (C). The statement must indicate the existence of any adverse environmental effects which cannot be avoided, as well as the alternatives to the proposed project.

Treating the proposed high-rise as a "major" project for purposes of Section 102(2) (C), defendants asked the borrower (PSS) to prepare a preliminary environmental worksheet. This worksheet was submitted to HUD on March 26, 1971. Three days later, the defendants filed a "negative statement," indicating that no environmental-impact statement was necessary.

The Act does not require an environmental-impact statement in every case in which a federal agency plans or finances a project. Echo Park Residents Comm. v. Romney (C.D.Cal. May 11, 1971). Statements are required by the Act if the proposed project is "major" and if it will have a "significant effect" upon the quality of the human environment.

Since HUD concedes that the PSS project is a "major" undertaking, the only question here is whether HUD acted arbitrarily in determining that the project would not have a "significant effect" upon the quality of the human environment.

In April 1970, the Council on Environmental Quality, established by Title II of NEPA, published its interim guidelines. These guidelines became final without important alteration in April of 1971. The interim guidelines were intended to govern HUD's environmental decisions at the time the PSS loan was approved in March 1971.

In Section 5(b), the guidelines say:

"The statutory clause `major Federal actions significantly affecting the quality of the human environment' is to be construed by agencies with a view to the overall, cumulative impact of the action proposed * * *." 35 Fed.Reg. 7390, 7391 (1970).

The guidelines note further that "proposed actions the environmental impact of which is likely to be highly controversial should be covered in all cases * * *." 35 Fed.Reg. at 7391.

From the plan's inception, opponents of the project began petitioning local and federal agencies in the hope of convincing them that the building's construction would be a hazard to the environment. The controversy has now manifested itself in this action.

The defendants now claim that the project will benefit rather than degrade the surrounding environment. But, as the interim guidelines point out, in Section 5(c), such a claim, even if true, does not mean that the project will not have a significant impact upon the quality of the human environment in and around Goose Hollow. Because the area presently has no high-rise buildings, the new building will undoubtedly change the character of the neighborhood. By housing a significant number of students, it will concentrate population in the area and serve to draw a greater concentration in the future.

The defendants gave virtually no weight to these factors, or to the incidental increase in automobile traffic....